Academic literature on the topic 'Transvaal Provincial Division'

The National Credit Regulator approached the then Transvaal Provincial Division of the High Court in 2008 by way of a notice of motion. In this application the Regulator prayed in terms of section 16(1)(b) of the National Credit Act 34 of 2005 (the "NCA") for the proper interpretation of mainly sections 86 and 87 of the same Act. Due to uncertainty and confusion the Regulator lodged an application to obtain clarity on some of the difficulties that debt counsellors experience in practice. The matter was heard in the High Court (TPD) on 02/03/2009 and judgment was handed down by Du Plessis J on 21/08/2009. This article discusses the fifteen prayers and the impact of the orders granted by the Court under three logical headings, namely: those that deal with the NCA and the Magistrate’s Court; Order 1 (on section 86(7)(c)), order 2 (an obligation to conduct a hearing), order 3 (the judicial role of the Magistrate’s Court) and order 4 (the application procedure of the Magistrate’s Court) defined the interaction between the NCA and the Magistrate’s Court Act (the “MCA”) very clearly. Since there is no sui generis procedure provided for in the NCA, it is submitted that the Court’s approach is correct. However, the end result is that the over-indebted consumer is not supported to the degree the NCA envisages. For example: a rule 55 procedure of the MCA can be cumbersome and costly, while the NCA envisaged a fast and relatively inexpensive process. those that deal with the role of the debt counsellor in debt restructuring; Order 5 (costs), order 6 (statutory function) and order 8 (the unique role of the debt counsellor), granted under this heading, are important. They define the role of the debt counsellor to be different from the run-of-the-mill applicant in terms of rule 55. He/she is even protected against some cost orders due to a statutory function. Because of this special function a question arises: should this difference in treatment not be even greater than custom presently permits or proposes? Since this function brings great responsibility and much paper work, should it not affect the fees that a debt counsellor may charge? those that deal with the court procedures. Orders 7, 9, 10 and 11 in this section are welcomed, namely those that deal with the service of documents, the geographical jurisdiction and monetary limit of the court, reckless credit and the in duplum rule. However, the Court preferred to stay on the safe side with respect to emoluments attachments orders and the application of section 86(2) to section 129(1). The lack of direction on the question when formal debt enforcement in fact begins, is regrettable. However, the declarator is a milestone in the history of the NCA. The orders impact significantly on the practice of debt review and will continue to shape the credit industry. Despite some disappointments it can be concluded that the declarator on the whole adds value to the practice of debt counselling in South Africa. It is now for the industry, the NCR, the legislators and scholars to take matters further.

State v. Hassen and Another [1998] 1 LRC 49 (Supreme Court of Soutfi Transvaal Provincial Division)The appellants had been apprehended as a result of a police trap, and were charged and convicted of contravening section 20 of the Diamonds Act, 1986. They appealed on die grounds that entrapment and the use of evidence obtained as a result of a police trap contravened their right to a fair trial provided by section 25(3) of the Constitution.

Bekker v Naude (2003 5 SA 173 (SCA)) concerned the vexing question of whether a will that was drafted by an attorney or other advisor of a person since deceased, but which was never executed by the deceased and indeed complies with none of the formalities for a valid will, can be accepted as a document that was “drafted” by the deceased and therefore be “rescued” and made effective in terms of the power of condonation conferred on a court by section 2(3) of the Wills Act 7 of 1953 (as amended) (hereinafter called “the Act” or the “Wills Act”) if the court is satisfied that the deceased intended the document to be his or her will. Since section 2(3) was enacted in 1992 there have been no less than 25 reported decisions concerning it, and many of them have concerned this question. The first few decisions concerning this question took a narrow approach to the meaning of the term “drafted” in section 2(3) that did not favour rescue, but a more flexible or liberal approach emerged which was soon favoured by the weight of judicial opinion. The apogee of this approach to section 2(3) is perhaps the decision in Ex parte Williams: In re Williams’ Estate (2000 4 SA 168 (T)) where Swart J, delivering the unanimous judgment of a full bench of the Transvaal Provincial Division, went so far as to describe the strict approach to section 2(3) as “an asinine culmination of the very sound reason for promulgating s 2(3)”. However, the Supreme Court of Appeal has now overruled the flexible or liberal approach in a unanimous judgment in Bekker v Naude (supra) in which the so-called “asinine” arguments have been accepted and applied! Such are the vagaries of statutory interpretation. What follows is an account and evaluation of this decision; but first it will be useful to set out the provisions of section 2(3).

To date, few South African doctors have been found guilty of medical negligence in a criminal court (see e.g. R v Van Schoor 1948 4 SA 349; S v Mkwetshana 1965 2 SA 493 (N)). In the field of gynaecology and obstetrics, the unreported case of S v Nell 1987 TPD (see Strauss 1991:280–1) is relevant. In this case, a general practitioner was found guilty of culpable homicide on the ground of negligence during a birth process for attempting to remove the patient’s placenta without the assistance of an obstetrician. The court a quo’s sentence of five years imprisonment, of which three years were conditionally suspended, was changed by the full bench of the Transvaal Provincial Division (TPD; to which the accused appealed) to a fine of R5 000 or to two years’ imprisonment. In Van der Walt v S 2019-4-11, case no. A13/2018, the High Court dismissed an appeal against the merits and the sentence of the Regional Court and sentenced the gynaecologist-obstetrician to five years imprisonment after he was found guilty of culpable homicide. An appeal to the Supreme Court of Appeal was dismissed, but the Constitutional Court in Van der Walt v S [2020] ZACC 19 allowed the doctor’s appeal against the judgment on the ground of alleged irregularities in the handling of the case in the court a quo. His contention was that his right to a fair trial, as protected in section 35(3)(i) of the Constitution, was violated in that the magistrate pronounced on the admissibility of only certain exhibits during her judgment. She had also relied on medical textbooks in her judgment that were not disclosed during the trial. His appeal against his sentence was moreover based on the fact that it violated section 12(1)(a) of the Constitution. The Constitutional Court subsequently allowed the appeal against the fairness of the trial but dismissed the appeal against the sentence. In order to better contextualise the judgment of the Constitutional Court, the judgment of the High Court requires closer inspection. The High Court judgment detailed the specialist’s negligence towards one of his patients, whose death after giving birth was found to have been caused by severe blood loss not being attended to by the specialist. Both the Regional Court and the High Court (sitting as a court of appeal) found him guilty on a charge of criminal negligence. Regrettably, the Constitutional Court’s focus was limited to the alleged irregularities by the court a quo and not the context in which said irregularities occurred. The Constitutional Court therefore upheld the appeal and directed that the case be referred back to the Director of Public Prosecutions for a decision on whether or not to reinstitute action in a Regional Court in front of another magistrate. As a consequence, the specialist’s sentence fell away following the Constitutional Court’s declaration that the trial in the Regional Court was unfair.